Religious Freedom and Anti-Discrimination Law: the state of play in Victoria

Part 1: Anti-discrimination law and religious organisations

This topic is so important and current that 3 parts are needed to unpack the issues adequately.

A free and multicultural society needs to protect both religious freedoms and people from unwarranted discrimination. The interplay between religious freedom and anti-discrimination laws is becoming increasingly relevant, and at points they seem to be headed for conflict.

In Part 1, we will look at current anti-discrimination law in Victoria, as it applies to religious organisations and organisations with religious affiliation. In Part 2, ‘Religious exemptions: the State of Play”, we look at how the Courts have applied the law in practice. In Part 3, ‘Practical tips for avoiding discrimination claims’, we consider what steps religious organisations can take to minimise the risk of breaching anti-discrimination law.

Anti-discrimination law in Victoria

The main protections against discrimination in Victoria are contained in the Equal Opportunity Act 2010 (Vic) (‘the Act’). There are also federal anti-discrimination laws including the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth) and the general protections provisions of the Fair Work Act 2009 (Cth). However, for the purpose of these articles we will only consider the Equal Opportunity Act, as this is the Act most likely to affect religious organisations operating in Victoria.

Discrimination under the Act occurs where one person treats, or proposes to treat, another person with one of the attributes listed in the Act unfavourably because of that attribute. The attributes listed in the Act include a person’s:

• age
• gender identity
• disability
• lawful sexual activity
• marital or parental status
• physical features
• political beliefs
• pregnancy or breastfeeding
• religious belief
• sex
• sexual orientation.

Discrimination also occurs where someone unreasonably requires a person with an attribute to do something that has the effect or likely effect of disadvantaging people who have that attribute (this is known as indirect discrimination).

For the discrimination to be unlawful, the discrimination must occur in one of the contexts set out in the Act (i.e. there is no blanket prohibition against discrimination). The contexts in which discrimination is unlawful include:

• employment
• the provision of goods and service
• the provision of accommodation
• the provision of education
• club membership
• sport.

Each of these contexts have specific exemptions. For example, there is an exemption allowing clubs established for a political purpose to exclude people from membership because of their political beliefs. For example, the Labor Party is not required to admit supporters of the Liberal Party into membership.

In addition to these specific exemptions, the Act also contains some general exemptions, including exemptions for religious organisations, schools and individuals.

The religious exemptions are contained in sections 81-84 of the Act. In summary, they allow:

• Section 82: Religious organisations to appoint and train whoever they wish as ministers of religion or members of a religious order, and to select and appoint whoever they wish to perform functions in relation to the observance of religious practice. The term ‘religious organisations’ has been interpreted narrowly by the courts to include churches, synagogues, mosques and temples, but generally would not include religious hospitals, charities or accommodation providers unless it could be shown that these have been established for a religious purpose.
• Section 83: Religious organisations and schools to discriminate against people on the basis of their religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity, where that discrimination is done on the basis of the organisation’s religious beliefs or is reasonably necessary to avoid injury to the religious sensitivities of the adherents of that religion. For example, a Muslim school can decide not to hire a Christian or atheist because of their beliefs, and a Catholic school can decide not to hire a person because their sexual practice is not consistent with the teachings of the Catholic Church.
• Section 84: An individual can also discriminate against another individual on the basis of the second person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity, where the discrimination by the first individual is reasonably necessary for that individual to comply with the doctrines, beliefs or principles of their religion.
• There are also exemptions in sections 60 and 61 of the Act with respect to welfare providers and educational institutions, allowing that they provide accommodation predominantly to people who share their religious beliefs and to refuse accommodation to people who do not share those beliefs.

In Part 2, ‘Religious Exemptions: the State of Play’, we will look at how these provisions have been applied by the Courts in practice.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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